Criminal Law - Outline Notes 1

CRIMINAL LAW OUTLINECRIMINAL HOMICIDE2SEXUAL OFFENSES7OFFENSES AGAINST PROPERTY11OFFENSES AGAINST PUBLIC ADMINISTRATION14INCHOATE CRIMES15LIMITS ON CRIM LIABILITY20THOERIES OF PUNISHMENT20PROPORTIONALITY AND SENTENCING21LEGALITY AND STATUTORY INTERPRETATION21BURDENS OF PROOF22DEFENSES22ELEMENTS OF A CRIME25CAUSATION261 CRIMINAL LAW OUTLINEI.CRIMINAL HOMICIDECriminal homicide is the unlawful killing of a human being.A. MURDERShort Rule: The act of murder involves a willed movement (omissions aside) and the mental state is purposely and knowingly[MPC 210.2(1)(a)].Short Rule [Felony Murder]: Felony murder is committed recklessly under circumstances manifesting extreme indifference tothe value of human life. Such recklessness and indifference are presumed if D is engaged or is an accomplice in thecommission of, or an attempt to commit, or flight after committing or attempting to commit robbery, rape or deviate sexualintercourse by force or threat of force, arson, burglary, kidnapping or felonious escape [MPC 210.2(1)(b)].Criminal homicide constitutes murder when it is committed purposely or knowingly.ACTUS REUSShort Rule: An unlawful killing of a human being (i.e., criminal homicide) [MPC 210.1]The act of murder involves a willed movement (omissions aside).MENS REAShort Rule 1: D acts purposely when he acts either intending for, or hoping that, a certain result will follow [MPC 210.2(1)(a)].A person acts purposely when the nature of his conduct is a result of conscious and objective action (i.e., intends to bringabout a result).Purposeful criminal intent resembles specific intent to cause harm (specific intent offense).Short Rule 2: D acts knowingly when he is aware that it is practically certain a specific result will occur [MPC 210.2(1)(a)]A person acts knowingly when he is aware of his conduct and is practically certain the result hoped for will happen.DEFENSESInsufficient evidenceShort Rule: P must prove every element of the offense beyond a reasonable doubt, unless D is innocent [MPC 1.12(1)]A negative defense; D asserts by silence or testimony that he did not commit murder, or that the P cannot prove that hecommitted the alleged offenseNot enough evidence to prove it beyond a reasonable doubt that D purposely and knowingly kill the victim.E.g., physical evidence, witness testimony, confessions, circumstantial evidence.P has the burden of proof beyond a reasonable doubt to prove all elements of murder.Self-DefenseShort Rule 1: Use of force in self-defense is justifiable if D believes such force is immediately necessary for the purpose ofprotecting himself against unlawful force [MPC 3.04]. D's belief must be objectively reasonable based on the circumstances ashe believes them to be [MPC 3.04(1)].Short Rule 2: Use of deadly force in self-defense is justifiable if D believes it is needed to protect himself against death, seriousbodily harm, kidnapping, or sexual intercourse compelled by force [MPC C.3.04(2)(a)] Moreover, D is not obligated to retreatfrom her home MPC 3.04(2)(b)]Typically, there are three elements for use of force in self-defense: immediacy, necessity, and proportionality.Limitations on justifying necessity for use of force include:Resisting arrestRight to use lethal force in self-defense is unavailable to someone who provokes a physical conflict, unless:D withdraws from the altercation and informs the other party of his withdrawal by words or conduct; or,Other party responds to the D's use of non-lethal force with lethal force, in which case D may use lethal force to defendhimself.D knows he can avoid using force by retreating, however:D is not required to retreat from his own dwelling, unless he is the initial aggressor.Self-defense is an affirmative defense. Thus, D has the burden of proving by a preponderance of evidence that self-defenseappeared necessary to defend herself [MPC 1.12(4)].Defense of OthersShort Rule: Use of force for the protection of others is justifiable if D would be justified under MPC 3.04 to protect himself, theperson whom D seeks to protect would be justified under circumstances as D believes them to be, and D believes suchintervention is necessary [MPC 3.05].2 CRIMINAL LAW OUTLINEUse of force is justifiable to protect a third person if D would be justified under 3.04, the third person D intends to protectwould be justified in using such protective force, D believes intervention is necessary for protection of third person.Defense of others is an affirmative defense. Thus, defense has the burden of proof by preponderance of the evidence toprove a justifiable defense of others.Defense of PropertyShort Rule 1: Use of nonlethal force is justifiable if D reasonably believes force is immediately necessary to prevent orterminate a trespass, or to affect an entry or re-entry upon land or to retake tangible movable property, provided that force isused immediately or in fresh pursuit and D believes the person against whom he uses force has no claim of right, andcircumstances are of such urgency that it would be an exceptional hardship to wait for a court order [MPC 3.06]Short Rule 2: Lethal force may be used if the defendant reasonably believes that lethal force is necessary to prevent animminent and unlawful entry into home to commit a felony [MPC 3.06]Limitations on justifying immediate necessity for use of force include:D must first request person to desist from interference with the property unless he believes:such request would be useless;it would be dangerous to make request; or,harm would be done before request can be madeD can't use force to exclude trespasser if to do so would expose him to serious harm;Deadly force not justifiable under this section unless:the person is attempting to commit robbery, and either (1) person has employed or threatened deadly force; or (2)would expose the actor to substantial danger.Defense has the burden of proof by preponderance of the evidence to prove justifiable defense of property.Extreme Emotional DistressShort Rule: Murder can be reduced to manslaughter if D commits murder under EMED for which there is reasonable excuseIMPC 210.3(2)]. Reasonableness is determined from the viewpoint of a person in D's situation under circumstances as Dbelieves them to be [MPC 210.3(2)]Mitigation, not a defense; argue as a defense to mitigate murder to voluntary manslaughter.D has burden of producing evidence regarding this affirmative defense, after which P must disprove the defense beyond areasonable doubt. However, most jurisdictions require D to prove the affirmative defense by a preponderance of theevidenceDetermined from the viewpoint of a person in D's situation under the circumstances as he believes them to be.Specific provocative act is not required to trigger D' EMED, only that the homicide resulted from an EMED for which there isreasonable explanation or excuse.No "cooling off" rule; as long as D was acting under extreme emotional disturbance, for which there is a reasonableexplanation or excuse.Mistake of FactShort Rule: Mistake of fact negates the mental state required for murder if D actually believes the facts in a givencircumstance, and the mistake need not be reasonable [MPC 2.04(1)(a)].Ignorance or mistake is a defense if the ignorance or mistake negatives the purpose, knowledge, belief, recklessness, ornegligence required to establish murder.If D would be guilty of another offense had the situation been as he supposed, then the mistake of D shall reduce theoffense of which he may be convicted to those of the offense of which he would be guilty had the situation been as hesupposed [MPC 2.04(2)].Example: Under MPC 2.04(1)(a), MF negates the mental state required for murder if D actually believes the facts in a givencircumstance, and the mistake need not be reasonable. S has the burden of proving beyond a reasonable doubt that D hadthe requisite intent [MPC 1.12(1)]. D may use deadly force if she believes it is necessary to protect against death or greatbodily injury, and D is not obligated to retreat from her home [MPC 3.04(2)(b)]. D has the burden of proving by apreponderance of evidence that SD appeared necessary to defend herself [MPC 1.12(4)]. Here, Jones believed she was inher own home and that the man was an intruder. She feared for her life when a large figure came toward her in the dark. Tokill purposely or knowingly would require Jones to know the accurate facts and intend a result, which she did not. More so,had the circumstances been as she believed, she had no duty to treat because she believed it was necessary to protectherself from an intruder. Thus, the defense will argue the MF defense negates the purposely or knowingly mental state anduse of deadly force in SD applies.3 CRIMINAL LAW OUTLINEBURDEN OF PROOFP has burden of proving beyond a reasonable doubt that D purposely or knowingly caused the death of victim.Defense has burden proving by preponderance of the evidence any affirmative defenses the defense raises.D has burden of producing evidence regarding EMED affirmative defense, after which P must disprove the defense beyond areasonable doubt. However, most jurisdictions require D to prove the affirmative defense by a preponderance of theevidenceExample: Under MPC 210.2(1)(a), murder is committed purposely or knowingly. The act of murder involves a willed movement(omissions aside) and the mental state is purposely or knowingly [MPC 210.2(1)(a)]. Here, Jones shot and killed the victim inhis own apartment. Jones claims she thought she was in her own apartment and feared for her life at the approaching figure.However, as a 10-year police veteran, Jones is professionally trained to navigate and defuse life-threatening situations. Moreso, as an expert marksman, she is highly skilled at handling firearms and knowledgeable of the harm a deadly weapon.Therefore, when Jones performed the act of pulling the trigger, she knew the bullet would cause harm and intended to causeharm to the victim. But for Jones shooting the victim, the victim would not have died. In sum, Jones intentionally shot thevictim causing his death. Thus, S will charge Jones with murder under MPC 210.2(1)(a).B. MANSLAUGHTERShort Rule 1: D is guilty of manslaughter is he recklessly kills another [MPC 210.3(1)(a)].Short Rule 2: D is guilty of manslaughter is he kills another as a result of extreme mental or emotional disturbance for whichthere is reasonable explanation or excuse [MPC 210.3(1)(b)].Criminal homicide constitutes manslaughter when it is committed recklessly or under extreme mental or emotionaldisturbance Reasonableness of such excuse determined from the viewpoint of a person in D's situation under thecircumstances as he believes them to be.ACTUS REUSShort Rule: An unlawful killing of a human being (i.e., criminal homicide] IMPC 210.1]MENS REAShort Rule 1: D acts recklessly when he consciously disregards a substantial and unjustifiable risk that is a gross deviation fromthe standard of conduct that a law-abiding person would observe in D's situation C2.02(2)(c)].A person acts recklessly when he consciously disregards a substantial and unjustifiable risk. The risk disregarded must be,considering the nature and purpose of D's conduct and the circumstances known to him, a gross deviation from thestandard of conduct that a law-abiding person would observe in D's situation (i.e., consciously disregards a substantial orunjustifiable risk; knows his actions but doesn't care about the harm that will occur; a subjective awareness of a risk ofharm, and an objective and unjustified disregard of that risk).Short Rule 2: D acts under extreme mental or emotional disturbance when such disturbance arises from some internalcondition of D, for which there is reasonable explanation or excuse MPC 210.3(1)(b)]A person acts under extreme mental or emotional disturbance ("EMED") when such disturbance arises from some internalcondition of D, for which there is a reasonable explanation or excuse.Subjective component ("extreme"): reasonableness of D's explanation or excuse should be determined from theviewpoint of a person in D's situation under the circumstances as he believes them to be.It is enough that D experienced intense feelings, sufficient to cause loss of self-control, at the time of the homicide.Objective component ("reasonable explanation or excuse"): must be a "reasonable explanation or excuse" for the D'smental or emotional disturbance.A reasonable explanation or excuse for D's EMED, NOT a reasonable explanation or excuse for the killing.Partially subjective, because reasonableness of explanation is considered from the viewpoint of a person in D'ssituation under the circumstances as he believes them to be.MPC takes no position regarding less extreme personal characteristics (i.e., abnormal sensitivity to verbal attacks or anabnormally fearful temperament).Any type of EMED may suffice (not just anger or other heightened passion).D's idiosyncratic moral values cannot be used as the cause of the EMED.-E.g., X touches D on shoulder and makes a gay proposition. D may not claim EMED on ground that his rage wasbrought by his moral view that gay people who make advances deserve to die.Specific provocative act is not required to trigger D's EMED, only that the homicide resulted from an EMED for whichthere is reasonable explanation or excuseAny event, including "mere words," can potentially qualify.4 CRIMINAL LAW OUTLINEMPC does away with notion of "cooling time," requiring only that D be "under the influence" of a mental or emotionaldisturbance at the time of the killing.General intent offenseDEFENSESInsufficient evidenceShort Rule: P must prove every element of the offense beyond a reasonable doubt, unless D is innocent [MPC 1.12(1)]A negative defense; D asserts by silence or testimony that he did not commit manslaughter, or that the P cannot prove thathe committed the alleged offense.Not enough evidence to prove it beyond a reasonable doubt that D kill the victim, recklessly or under EMED.E.g., physical evidence, witness testimony, confessions, circumstantial evidenceP has the burden of proof beyond a reasonable doubt to prove all elements of murder.Self-DefenseShort Rule 1: Use of force in self-defense is justifiable if D believes such force is immediately necessary for the purpose ofprotecting himself against unlawful force [MPC 3.04]. D's belief must be objectively reasonable based on the circumstancesashe believes them to be [MPC 3.04(1)].Short Rule 2: Use of deadly force in self-defense is justifiable if D believes it is needed to protect himself against death, seriousbodily harm, kidnapping, or sexual intercourse compelled by force [MPC C.3.04(2)(a)] Moreover, D is not obligated to retreatfrom her home [MPC3.04(2)(b)].Use of force is justifiable when D believes that such force is immediately necessary for the purpose of protecting himselfagainst the use of unlawful force.Limitations on justifying necessity for use of force include:Resisting arrestRight to use lethal force in self-defense is unavailable to someone who provokes a physical conflict, unless:D withdraws from the altercation and informs the other party of his withdrawal by words or conduct; or,Other party responds to the D's use of non-lethal force with lethal force, in which case D may use lethal force to defendhimself.D knows he can avoid using force by retreating, howeverD is not required to retreat from his own dwelling, unless he is the initial aggressor.Self-defense is an affirmative defense Thus, D has the burden of proving by a preponderance of evidence that self-defenseappeared necessary to defend herself [MPC 1.12(4)].Defense of OthersShort Rule: Use of force for the protection of others is justifiable if D would be justified under MPC 3.04 to protect himself, theperson whom D seeks to protect would be justified under circumstances as D believes them to be, and D believes suchintervention is necessary [MPC 3.05]Use of force is justifiable to protect a third person if D would be justified under 3.04, the third person D intends to protectwould be justified in using such protective force, D believes intervention is necessary for protection of third person.Affirmative defense; thus, D has the burden of proof by preponderance of the evidence to prove justifiable defense ofothers [MPC 1.12(4)].Defense of Property and HabitationShort Rule 1: Use of nonlethal force is justifiable if D reasonably believes force is immediately necessary to prevent orterminate a trespass, or to affect an entry or re-entry upon land or to retake tangible movable property, provided that force isused immediately or in fresh pursuit and D believes the person against whom he uses force has no claim of right, andcircumstances are of such urgency that it would be an exceptional hardship to wait for a court order [MPC 3.06]Short Rule 2: Lethal force may be used if the defendant reasonably believes that lethal force is necessary to prevent animminent and unlawful entry into home to commit a felony [MPC 3.06].Limitations on justifying immediate necessity for use of force include:D must first request person to desist from interference with the property unless he believes:such request would be useless;it would be dangerous to make request; or,harm would be done before request can be madeD can't use force to exclude trespasser if to do so would expose him to serious harm;Deadly force not justifiable under this section unless:5 CRIMINAL LAW OUTLINEthe person is attempting to commit robbery, and either (1) person has employed or threatened deadly force; or (2)would expose the actor to substantial danger.Defense has the burden of proof by preponderance of the evidence to prove justifiable defense of property.Mistake of FactShort Rule: Mistake of fact negates the mental state required for manslaughter if D actually believes the facts in a givencircumstance, and the mistake need not be reasonable [MPC 2.04(1)(a)].Ignorance or mistake is a defense if the ignorance or mistake negatives the purpose, knowledge, belief, recklessness, ornegligence required to establish murder.If D would be guilty of another offense had the situation been as he supposed, then the mistake of D shall reduce theoffense of which he may be convicted to those of the offense of which he would be guilty had the situation been as hesupposed [MPC 2.04(2)].BURDEN OF PROOFP has burden of proving beyond a reasonable doubt that D recklessly or under EMED caused the death of victim.D has burden of producing evidence regarding EMED affirmative defense, after which P must disprove the defense beyond areasonable doubt. However, most jurisdictions require D to prove the affirmative defense by a preponderance of theevidenceDefense has burden proving by preponderance of the evidence any affirmative defenses the defense raises.C. NEGLIGENT HOMICIDECriminal homicide constitutes negligent homicide when it is committed negligently.ACTUS REUSShort Rule: An unlawful killing of a human being (i.e., criminal homicide) [MPC 210.1]MENS REAShort Rule: D acts negligently when he should be aware of a substantial and unjustifiable risk, and D's failure to perceive it is agross deviation from the standard of care that a reasonable person would observe in D's situation [MPC 2.02(2)(d)].Aperson acts negligently when he should be aware of a substantial and unjustifiable risk. The risk must be of such a natureand degree that D's failure to perceive it, considering the nature and purpose of his conduct and the circumstances knownto him, is a gross deviation from the standard of care that a reasonable person would observe in D's situation (i.e., not beingaware of a substantial risk of harm when a reasonable person would be; D is not aware of the risk but should have been andfailure to recognize the risk is a gross deviation from a reasonable person).Similar to involuntary manslaughter at common law.DEFENSESInsufficient evidenceShort Rule: P must prove every element of the offense beyond a reasonable doubt, unless D is innocent [MPC 1.12(1)]A negative defense; D asserts by silence or testimony that he did not commit negligent homicide, or that the P cannot provethat he committed the alleged offense.Not enough evidence to prove it beyond a reasonable doubt that D negligently kill the victim.E.g., physical evidence, witness testimony, confessions, circumstantial evidence.P has the burden of proof beyond a reasonable doubt to prove all elements of negligent homicide.Self-DefenseShort Rule 1: Use of force in self-defense is justifiable if D believes such force is immediately necessary for the purpose ofprotecting himself against unlawful force [MPC 3.04]. D's belief must be objectively reasonable based on the circumstances ashe believes them to be [MPC3.04(1)]Short Rule 2: Use of deadly force in self-defense is justifiable if D believes it is needed to protect himself against death, seriousbodily harm, kidnapping, or sexual intercourse compelled by force [MPC 3.04(2)(a)]. Moreover, D is not obligated to retreatfrom her home [MPC 3.04(2)(b)]Use of force is justifiable when D believes that such force is immediately necessary for the purpose of protecting himselfagainst the use of unlawful force.Limitations on justifying necessity for use of force include:Resisting arrestRight to use lethal force in self-defense is unavailable to someone who provokes a physical conflict, unless:6 CRIMINAL LAW OUTLINED withdraws from the altercation and informs the other party of his withdrawal by words or conduct; or,Other party responds to the D's use of non-lethal force with lethal force, in which case D may use lethal force to defendhimself.D knows he can avoid using force by retreating, however:D is not required to retreat from his own dwelling, unless he is the initial aggressor.Self-defense is an affirmative defense. Thus, D has the burden of proving by a preponderance of evidence that self-defenseappeared necessary to defend herself [MPC 1.12(4)].Defense of OthersShort Rule: Use of force for the protection of others is justifiable if D would be justified under MPC 3.04 to protect himself, theperson whom D seeks to protect would be justified under circumstances as D believes them to be, and D believes suchintervention is necessary [MPC 3.05].Use of force is justifiable to protect a third person if D would be justified under 3.04, the third person D intends to protectwould be justified in using such protective force, D believes intervention is necessary for protection of third person.Affirmative defense; thus, D has the burden of proof by preponderance of the evidence to prove justifiable defense ofothers [MPC 1.12(4)].Defense of Property and HabitationShort Rule 1: Use of nonlethal force is justifiable if D reasonably believes force is immediately necessary to prevent orterminate a trespass, or to affect an entry or re-entry upon land or to retake tangible movable property, provided that force isused immediately or in fresh pursuit and D believes the person against whom he uses force has no claim of right, andcircumstances are of such urgency that it would be an exceptional hardship to wait for a court order [MPC 3.06].Short Rule 2: Lethal force may be used if the defendant reasonably believes that lethal force is necessary to prevent animminent and unlawful entry into home to commit a felony [MPC 3.06]Limitations on justifying immediate necessity for use of force include:D must first request person to desist from interference with the property unless he believes:such request would be useless;it would be dangerous to make request; or,harm would be done before request can be madeD can't use force to exclude trespasser if to do so would expose him to serious harm;Deadly force not justifiable under this section unless:the person is attempting to commit robbery, and either (1) person has employed or threatened deadly force; or (2)would expose the actor to substantial danger.Defense has the burden of proof by preponderance of the evidence to prove justifiable defense of property.Mistake of FactShort Rule: Mistake of fact negates the mental state required for negligent homicide if D actually believes the facts in a givencircumstance, and the mistake need not be reasonable (MPC2.04(1)(a)].Ignorance or mistake is a defense if the ignorance or mistake negatives the purpose, knowledge, belief, recklessness, ornegligence required to establish murder.If D would be guilty of another offense had the situation been as he supposed, then the mistake of D shall reduce theoffense of which he may be convicted to those of the offense of which he would be guilty had the situation been as hesupposed [MPC 2.04(2)].BURDEN OF PROOFP has burden of proving beyond a reasonable doubt that D negligently caused the death of victim.Defense has burden proving by preponderance of the evidence any affirmative defenses the defense raises.II. SEXUAL OFFENSESA. RAPE AND RELATED OFFENSESShort Rule [Forcible rape]: A male who has sexual intercourse with a female not his wife is guilty if (a) he compels her tosubmit by force or by threat of imminent death, serious bodily injury, extreme pain or kidnapping, to be inflicted on anyone.Short Rule [Nonforcible rape]: A male who has sexual intercourse with a female not his wife is guilty if (b) he has substantiallyimpaired her power to appraise or control her conduct by administering or employing without her knowledge drugs,7 CRIMINAL LAW OUTLINEintoxicants or other means for the purpose of preventing resistance; (c) the female is unconscious; or, (d) the female is lessthan 10 years old.Rape is gender-specific and the marital exception applies if the couple are living as husband and wife and are not separatedACTUS REUSShort Rule 1: The act of rape is sexual intercourse, which requires some penetration (however slight) and use of force orthreat [MPC 213.1(1)(a)]Short Rule 2: The act of rape is sexual intercourse, which requires some penetration (however slight) [MPC 213.0(2)]MENS REAShort Rule: MPC 213.1 does not define the mens rea for rape; thus, MPC 2.02(1) applies. D must be purposeful,knowledgeable, or reckless to each of the material elements in order for the mens rea requirement to be satisfied [MPC2.02(1)].Compulsion ("compel") by the male implies nonconsent by the female.Nonconsent and resistance are not required elements, but they do hold evidentiary significance.MPC focuses attention on D's actions (his act of compulsion) and not on how the alleged victim responded.Thus, the MPC does not include a resistance requirement.Rape is a general intent offense. Therefore, a person is not guilty of rape if, at the time of intercourse, he entertained agenuine and reasonable belief that the female voluntarily consentedRape is a felony in the first-degree if (1) D actually inflicts serious bodily injury upon anyone during the course of the rape;or, (2) the female was not a "voluntary social companion of D upon the occasion of the crime and had not previouslypermitted him sexual liberties." If these two situations do not apply, then rape is a second-degree felony.DEFENSESInsufficient evidenceShort Rule 1: P must prove every element of the offense beyond a reasonable doubt, unless D is innocent [MPC 1.12(1)].Short Rule 2: A rape or gross sexual imposition conviction cannot be sustained if the only evidence is the testimony of thevictim; there must be corroborating evidence [MPC 213.6(5)].A negative defense; D asserts by silence or testimony that he did not commit rape, or that the P cannot prove that hecommitted the alleged offense.Not enough evidence to prove it beyond a reasonable doubt that D raped the victim.E.g., physical evidence, witness testimony, confessions, circumstantial evidence.P has the burden of proof beyond a reasonable doubt to prove all elements of rape.ConsentShort Rule: Consent of the victim is a defense if such consent negatives an element of a rape [MPC 213.1]Consent can be a valid defense to a crime only if the victim chooses to render it.Must be proffered knowingly and voluntarily, or it is ineffective Under the MPC, consent is ineffective if:It is given by a person who is legally incompetent to authorize the conductIt is given by a person who by reason of youth, mental disease or defect or intoxication is manifestly unable to make areasonable judgmentIt is induced by force, duress or deception [MPC 2.11(3)].Consent is not knowing if it is given by an individual who is too young, mentally incompetent or intoxicatedConsent is not voluntary if it is induced by force, threat of force, or trickery.Mistake of Fact / AgeShort Rule 1: Mistake of fact negates the mental state required for rape if D actually believes the facts in a given circumstanceand the mistake need not be reasonable [MPC 2.04(1)(a)].Short Rule 2: When the criminal conduct depends on the child being younger than 10, it is not a defense that D believed thechild to be older than 10 [MPC213.6(1)].Short Rule 3: When the criminal conduct depends on the child's age, mistake of age is a defense if the child is older than 10(MPC213.6(1)]Ignorance or mistake is a defense if the ignorance or mistake negatives the purpose, knowledge, belief, recklessness, ornegligence required to establish rape.If D would be guilty of another offense had the situation been as he supposed, then the mistake of D shall reduce theoffense of which he may be convicted to those of the offense of which he would be guilty had the situation been as hesupposed [MPC 2.04(2)].8 CRIMINAL LAW OUTLINEStatute of LimitationsShort Rule: A victim sixteen or older must file a complaint with the public authorities within three months of the incident inorder to sustain a conviction [MPC 213.6(4)]BURDEN OF PROOFP has burden of proving beyond a reasonable doubt that D raped the victim.Defense has burden proving by preponderance of the evidence any affirmative defenses the defense raises.When criminality depends on a child being below an age other than 10, D has burden of proving by preponderance of theevidence that D reasonably believed the child to be above such age (no defense for children 10 and under).p has the burden of proving beyond a reasonable doubt that D compelled the victim to submit by force or by threat. Tocompel to submit by force or threat implies no consent. Consent of the victim is a defense if such consent negatives anelement of a rape [MPC 213.1]B.GROSS SEXUAL IMPOSITIONShort Rule: A man is guilty of gross sexual imposition if he uses a nonphysical threat that would cause a woman of "ordinaryresolution" to submit to intercourse [MPC 213.2(a)]Gross sexual imposition, an offense less serious than rape and a felony of the third-degree, deals with three circumstances inwhich a male secures sexual intercourse with a female not his wife if: (1) he compels her to submit by any threat that wouldprevent resistance; (2) he knows that she suffers from mental disease which renders her incapable of appraising the nature ofher conduct; or, (3) he knows that she is unaware that a sexual act is being committed upon her or that she submits becauseshe mistakenly supposed that he is her husbandObtaining consent by fraud-in-the-factum (but not fraud-in-the-inducement) also constitutes gross sexual imposition.Pretending to be the woman's husband satisfies gross sexual imposition.A man can also be guilty of gross sexual imposition if he knows that the female has a mental illness or some defect whichmakes her unable to appraise the nature of her conductACTUS REUSShort Rule: The act of gross sexual imposition is sexual intercourse, which requires some penetration (however slight) and useof a nonphysical threat [MPC 213.2(a)]MENS REAShort Rule 1 [regarding MPC 213.2(b)(c)]: D acts knowingly when he is aware that it is practically certain a specific result willoccur [MPC 210.2(1)(a)]Short Rule 2: MPC 213.2(a) does not define the mens rea for gross sexual imposition; thus, MPC 2.02(1) applies. D must bepurposeful, knowledgeable, or reckless to each of the material elements in order for the mens rea requirement to be satisfiedMPC 2.02(1)].Compulsion ("compel") by the male implies nonconsent by the female.Nonconsent and resistance are not required elements, but they do hold evidentiary significance.MPC focuses attention on D's actions (his act of compulsion) and not on how the alleged victim respondedThus, the MPC does not include a resistance requirementRape is a general intent offense. Therefore, a person is not guilty of rape if, at the time of intercourse, he entertained agenuine and reasonable belief that the female voluntarily consentedDEFENSESInsufficient evidenceShort Rule 1: P must prove every element of the offense beyond a reasonable doubt, unless D is innocent [MPC 1.12(1)].Short Rule 2: A rape or gross sexual imposition conviction cannot be sustained if the only evidence is the testimony of thevictim there must be corroborating evidence [MPC 213.6(5)]A negative defense; D asserts by silence or testimony that he did not commit gross sexual imposition, or that the P cannotprove that he committed the alleged offense.Not enough evidence to prove it beyond a reasonable doubt that D gross sexual imposed the victim.E.g., physical evidence, witness testimony, confessions, circumstantial evidence.P has the burden of proof beyond a reasonable doubt to prove all elements of gross sexual imposition.ConsentShort Rule: Consent of the victim is a defense if such consent negatives an element of a gross sexual imposition.9 CRIMINAL LAW OUTLINEConsent can be a valid defense to a crime only if the victim chooses to render it.Must be proffered knowingly and voluntarily, or it is ineffective Under the MPC, consent is ineffective if:It is given by a person who is legally incompetent to authorize the conduct;It is given by a person who by reason of youth, mental disease or defect or intoxication is manifestly unable to make areasonable judgment;It is given by a person whose improvident consent is sought to be prevented by the law defining the offense; orIt is induced by force, duress or deception [MPC2.11(3)].Consent is not knowing if it is given by an individual who is too young, mentally incompetent or intoxicatedConsent is not voluntary if it is induced by force, threat of force, or trickery.Mistake of Fact / AgeShort Rule 1: Mistake of fact negates the mental state required for gross sexual imposition if D actually believes the facts in agiven circumstance, and the mistake need not be reasonable [MPC 2.04(1)(a)]Short Rule 2: When the criminal conduct depends on the child being younger than 10, it is not a defense that D believed thechild to be older than 10 [MPC213.6(1)].Short Rule 3: When the criminal conduct depends on the child's age, mistake of age is a defense if the child is older than 10[MPC213.6(1)]Ignorance or mistake is a defense if the ignorance or mistake negatives the purpose, knowledge, belief, recklessness, ornegligence required to establish gross sexual imposition.If D would be guilty of another offense had the situation been as he supposed, then the mistake of D shall reduce theoffense of which he may be convicted to those of the offense of which he would be guilty had the situation been as hesupposed [MPC 2.04(2)].Statute of LimitationsShort Rule: A victim sixteen or older must file a complaint with the public authorities within three months of the incident inorder to sustain a conviction [MPC 213.6(4)]BURDEN OF PROOFP has burden of proving beyond a reasonable doubt that D grossly sexual imposed victim.Defense has burden proving by preponderance of the evidence any affirmative defenses the defense raises.When criminality depends on a child being below an age other than 10, D has burden of proving by preponderance of theevidence that D reasonably believed the child to be above such age (no defense for children 10 and under).Consent of the victim is a defense if such consent negatives an element of a gross sexual imposition MPC 213.1C. SEXUAL ASSAULTA person who has sexual contact with another not his spouse, or causes such other to have sexual contact with him, is guilty ofsexual assault, a misdemeanor, if(1) he knows that the contact is offensive to the other person; or(2) he knows that the other person suffers from a mental disease or defect which renders him or her incapable of appraisingthe nature of his or her conduct; or(3) he knows that the other person is unaware that a sexual act is being committed; or(4) the other person is less than 10 years old; or(5) he has substantially impaired the other person's power to appraise or control his or her conduct, by administering oremploying without the other's knowledge drugs, intoxicants or other means for the purpose of preventing resistance; or(6) the other person is less than 16 years old and D is at least 4 years older than the other person; or(7) the other person is less than 21 years old and D is his guardian or otherwise responsible for general supervision of hiswelfare; or(8) the other person is in custody of law or detained in a hospital or other institution and D has supervisory or disciplinaryauthority over him.ACTUS REUSShort Rule: The act of sexual contact with another not his spouse. Sexual contact is any touching of the sexual or otherintimate parts of the person for the purpose of arousing or gratifying sexual desire [MPC 213.4MENS REAShort Rule 1 [regarding MPC 213.4(1)(2)(3)]: D acts knowingly when he is aware that it is practically certain a specific resultwill occur [MPC 210.2(1)(a)]10 CRIMINAL LAW OUTLINEShort Rule 2: MPC 213.4(4)(5)(6)(7)(8) does not define the mens rea for gross sexual imposition; thus, MPC 2.02(1) applies. Dmust be purposeful, knowledgeable, or reckless to each of the material elements in order for the mens rea requirement to besatisfied [MPC2.02(1)]DEFENSESInsufficient evidenceShort Rule: P must prove every element of the offense beyond a reasonable doubt, unless D is innocent IMPC 1.12(1)].A negative defense; D asserts by silence or testimony that he did not commit sexual assault, or that the P cannot prove thathe committed the alleged offense.Not enough evidence to prove it beyond a reasonable doubt that D sexually assaulted the victim.E.g., physical evidence, witness testimony, confessions, circumstantial evidence.P has the burden of proof beyond a reasonable doubt to prove all elements of sexual assault.ConsentShort Rule: Consent of the victim is a defense if such consent negatives an element of a sexual assault.Consent can be a valid defense to a crime only if the victim chooses to render it.Must be proffered knowingly and voluntarily, or it is ineffective Under the MPC, consent is ineffective if:It is given by a person who is legally incompetent to authorize the conductIt is given by a person who by reason of youth, mental disease or defect or intoxication is manifestly unable to make areasonable judgment.oIt is induced by force, duress or deception [MPC 2.11(3)].Consent is not knowing if it is given by an individual who is too young, mentally incompetent or intoxicatedConsent is not voluntary if it is induced by force, threat of force, or trickery.Mistake of Fact / AgeShort Rule 1: Mistake of fact negates the mental state required for sexual assault if D actually believes the facts in a givencircumstance, and the mistake need not be reasonable [MPC 2.04(1)(a)].Short Rule 2: When the criminal conduct depends on the child being younger than 10, it is not a defense that D believed thechild to be older than 10 [MPC213.6(1)].Short Rule 3: When the criminal conduct depends on the child's age, mistake of age is a defense if the child is older than 10[MPC213.6(1)]Ignorance or mistake is a defense if the ignorance or mistake negatives the purpose, knowledge, belief, recklessness, ornegligence required to establish sexual assaultIf D would be guilty of another offense had the situation been as he supposed, then the mistake of D shall reduce theoffense of which he may be convicted to those of the offense of which he would be guilty had the situation been as hesupposed [MPC 2.04(2)].Statute of LimitationsShort Rule: A victim sixteen or older must file a complaint with the public authorities within three months of the incident inorder to sustain a conviction [MPC 213.6(4)].BURDEN OF PROOFP has burden of proving beyond a reasonable doubt that D sexually assaulted the victim.Defense has burden proving by preponderance of the evidence any affirmative defenses the defense raises.When criminality depends on a child being below an age other than 10, D has burden of proving by preponderance of theevidence that D reasonably believed the child to be above such age (no defense for children 10 and under).Consent of the victim is a defense if such consent negatives an element of a sexual assault [MPC 213.1]III. OFFENSES AGAINST PROPERTYA. ROBBERY (SEE MPC)B. THEFT AND RELATED OFFENSESShort Rule: Wrongful acquisition of or keeping of personal property with wrongful intent.MPC consolidates larceny and embezzlement under theft by unlawful take or disposition.11 CRIMINAL LAW OUTLINE1.THEFT BY UNLAWFUL TAKING OR DISPOSITIONShort Rule: D is guilty of theft if he commits a trespassory taking or exercising control over movable property with the purposeto deprive another thereof or trespassory transferring of immovable property of another with the purpose to benefit himselfor another not entitled thereof PC 223.3(1)(2)]CHECKLIST FOR P TO CONVICT (LARCENY)Trespassory taking or dispossessing the property.Physical separation of the item from its owner without owner's permission.Taking must be a possession of, not just custody of, the property.Property belonged to someone else.Person with rightful possession of the property.Purpose was to deprive the other person of their property.ACTUS REUSShort Rule 1: The act of theft is a trespassory (unlawful) taking or exercising control over movable property {MPC 223.2(1)]Short Rule 2: The act of theft is a trespassory (unlawful) transfer of immovable property [MPC 223.2(2)].Must be a trespassery (unlawful) taking for larceny.A trespass occurs if the D takes possession of the personal property of another, i.e., dispossesses another, without thelatter's consent or in the absence of a justification for the nonconsensual taking.A "taking" involves the wrongful taking of possession, rather than mere custody, of property.D is in "possession" of property if he has sufficient control over it to use it in a generally unrestricted manner. Possessionmay be actual or constructive."Actual" possession is when D has physical control over the property."Constructive" possession is when D does not have physical control over it, but nobody else is in actual possession of it.D is in "custody" of property if he has physical control of the property, but his right to use it is substantially restrictedIn the ordinary situation, a person has custody rather than possession of property if he has temporary and limited rightto use the property in the possessor's presence.MENS REAShort Rule: D must have a conscious objective to deprive another of the property, including a conscious objective topermanently deprives another of its use and enjoyment [MPC 223.3(1)(2)].Criminal intent element required under consolidated theft statutes is either specific intent or purposely, or general intent orknowingly to perform the criminal act.MPC requires purposeful intent for theft by unlawful taking or disposition (i.e., specific intent crime).CONCURRENCEThe intent to steal must concur with the taking of the property.The concurrence requirement is subject to the "continuing trespass" doctrine.When a person trespassorily takes possession of property, she commits a new trespass every moment that she retainswrongful possession of it. (i.e., even if the wrongdoer does not have the intent to steal the property when she originallytakes property trespassorily, the concurrence requirement is met if she later decides to steal the property).DEFENSESInsufficient evidenceShort Rule: P must prove every element of the offense beyond a reasonable doubt, unless D is innocent [MPC 1.12(1)]A negative defense; D asserts by silence or testimony that he did not commit theft, or that the P cannot prove that hecommitted the alleged offense.D did not actually obtain the property or defendant was only borrowing the property.Not enough evidence to prove it beyond a reasonable doubt that D committed theft.E.g., physical evidence, witness testimony, confessions, circumstantial evidence.P has the burden of proof beyond a reasonable doubt to prove all elements of theft.Other affirmative defensesShort Rule: It is an affirmative defense for theft that D was unaware the property was that of another [MPC 223.1(3)(a)]Short Rule: It is an affirmative defense for theft that D acted under an honest claim of right to the property or service [MPC223.1(3)(b)]12 CRIMINAL LAW OUTLINEShort Rule: It is an affirmative defense for theft that D took property for sale, intending to purchase and pay for it promptly, orreasonably believing that the owner would have consented [MPC 223.1(3)(c)]BURDEN OF PROOFP has burden of proving beyond a reasonable doubt that D committed a trespassory taking of and exercising of controlover movable or immovable property of anotherDefense has burden proving by preponderance of the evidence any affirmative defenses the defense raises.2.THEFT BY UNLAWFUL TAKING OR DISPOSITION (EMBEZZLEMENT)Short Rule: Embezzlement occurs when D takes possession of the personal property of another in a nontrespassery (lawful)manner. After securing lawful possession of the property, D converts the property to his own use, i.e., he uses the property ina manner that manifests his intention to deprive another person of the property permanently.Gains possession of the property lawfully.Embezzlement is conversion of property of another plus the intent to permanently deprive another of that property.Requires the attendant circumstance element of a relationship of trust and confidence between the victim and thedefendant.The line between larceny and embezzlement is very thin and depends in large parton the stateofmind ofDatthetime hetakes possession of property.CHECKLIST FOR P TO CONVICT (EMBEZZLEMENT)Embezzling or converting.Embezzling is the keeping property D was supposed to return.Converting is interfering with the person's property in order to benefit from it.Property belongs to someone else.By someone who has been entrusted with that property.With purpose to deprive the other person of their property.3.THEFT BY DECEPTION (LARCENY BY TRICK)Short Rule: A person is guilty of theft (larceny by trick) if he purposely obtains property of another by deception MPC 223.3A person deceives is he purposely:creates false impression (as to law, value, intention or other state of mind); regardless if D actually performs the promisefrom the false impression; orprevents another from acquiring information which would affect his judgment of a transaction; orAdditional attendant circumstance element of victim reliance on the false representation of fact made by D.fails to correct a false impression which D previously created or reinforced, or which D knows to be influencing another towhom he stands in a fiduciary or confidential relationship; orfails to disclose a known lien, adverse claim or other legal impediment to the enjoyment of property which he transfers orencumbers in consideration for the property obtained, whether such impediment is or is not valid, or is or is not a matterof official record.ACTUS REUSShort Rule: Criminal act for theft by deception is the obtaining of property of another by deception [MPC 223.3]MENS REAShort Rule: Theft by deception requires a conscious and objective obtaining of property by deception [MPC 223.3]MPC requires purposeful intent for theft by unlawful taking by deception (i.e., specific intent crime).DEFENSESInsufficient evidenceShort Rule: P must prove every element of the offense beyond a reasonable doubt, unless D is innocent [MPC 1.12(1)]A negative defense; D asserts by silence or testimony that he did not commit theft, or that the P cannot prove thathecommitted the alleged offense.D did not actually obtain the property or defendant was only borrowing the property.Not enough evidence to prove it beyond a reasonable doubt that D committed theft.E.g., physical evidence, witness testimony, confessions, circumstantial evidenceP has the burden of proof beyond a reasonable doubt to prove all elements of theft.13 CRIMINAL LAW OUTLINEBURDEN OF PROOFP has burden of proving beyond a reasonable doubt that D committed a purposeful obtainment of someone's property bydeceiving him or her.Defense has burden proving by preponderance of the evidence any affirmative defenses the defense raises.4. THEFT BY EXTORTIONShort Rule: A person is guilty of theft if he purposely obtains property of another by threatening to inflict bodily injury onanyone or commit any other criminal offense, accuse anyone of a criminal offense, expose any secret, take or withhold actionas an official (or cause an official to take or withhold action), bring about a continued strike, testify or provide information,inflict any other harm [MPC 223.4]ACTUS REUSShort Rule: Criminal act element required for extortion is obtains property of another by threatening to inflict bodily injury onanyone, commit any criminal offense, accuse anyone of a criminal offense, expose any secret tending to subject any person tohatred, contempt, or ridicule or impair his credit and business repute, take or withhold action as an official, bring about astrike or boycott, testify with respect to another's legal claim, or inflict any other harm that would not benefit D [MPC 223.4]MENS REAShort Rule: Theft by extortion requires a conscious and objective obtaining of property by extorting the other [MPC 223.4The criminal intent element required for extortion is typically the specific intent or purposely to commit the criminal act andto unlawfully deprive the victim of property permanently [MPC 223.4].MPC requires purposeful intent for theft by unlawful taking by extortion (i.e., specific intent crime).DEFENSESInsufficient evidenceShort Rule: P must prove every element of the offense beyond a reasonable doubt, unless D is innocent [MPC 1.12(1)].A negative defense; D asserts by silence or testimony that he did not commit theft, or that the P cannot prove that hecommitted the alleged offense.D did not actually obtain the property or defendant was only borrowing the property.Not enough evidence to prove it beyond a reasonable doubt that D committed theft.E.g., physical evidence, witness testimony, confessions, circumstantial evidence.P has the burden of proof beyond a reasonable doubt to prove all elements of theft.Other affirmative defensesShort Rule: It is an affirmative defense for theft that D acted under an honest claim of right to the property or service [MPC223.1(3)(b)]Acted Under Honest Claim of Right: It is an affirmative defense to extortion if D has an honest and reasonable belief that theproperty taken is restitution or compensationBURDEN OF PROOFP has burden of proving beyond a reasonable doubt that D purposely obtained property of another by extorting him orher.Defense has burden proving by preponderance of the evidence any affirmative defenses the defense raises.IV. OFFENSES AGAINST PUBLIC ADMINISTRATIONA. BRIBERY IN OFFICIAL AND POLITICAL MATTERSA person is guilty of bribery if he offers, confers or agrees to confer upon another, or solicits, accepts or agrees to accept fromanother:(1) any pecuniary benefit as consideration for the recipient's decision, opinion, recommendation, vote or other exercise ofdiscretion as a public servant, party official or voter;(2) any benefit as consideration for the recipient's decision, vote, recommendation or other exercise of official discretion in ajudicial or administrative proceeding; or,(3) any benefit as consideration for a violation of a known legal duty as public servant or party official.ACTUS REUS14 CRIMINAL LAW OUTLINEShort Rule: The act of conferring, offering, agreeing to confer, soliciting, accepting, or agreeing to accept any benefit inexchange for a judicial or administrative officer's decision, vote, recommendation, or other exercise of official discretionMENS REAShort Rule: MPC 240.1 does not define the mens rea for bribery in official and political matters; thus, MPC 2.02(1) applies. Dmust be purposeful, knowledgeable, or reckless to each of the material elements in order for the mens rea requirement to besatisfied [MPC2.02(1)]Criminal intent element of purposely (specific intent) or knowingly (generally intent) to enter into an agreement thatinfluences the bribed individual's decision.DEFENSESShort Rule 1: It is no defense to bribery that the individual bribed does not have the authority to act or make the decision thatis the subject of the bribe [MPC 240.1Insufficient evidenceShort Rule: P must prove every element of the offense beyond a reasonable doubt, unless D is innocent [MPC 1.12(1)].A negative defense; D asserts by silence or testimony that he did not commit bribery of a public official, or that the P cannotprove that he committed the alleged offenseNot enough evidence to prove it beyond a reasonable doubt that D committed bribery of a public official.E.g., physical evidence, witness testimony, confessions, circumstantial evidence.P has the burden of proof beyond a reasonable doubt to prove all elements of bribery of a public official.BURDEN OF PROOFP has burden of proving beyond a reasonable doubt that D purposely or knowingly bribed a public official.Defense has burden proving by preponderance of the evidence any affirmative defenses the defense raises.B. OFFICIAL MISCONDUCTShort Rule: Any act committed by a public official that misuses their office to commit a criminal act.E.g., public official takes a bribe to steer contracts to a certain companyV. INCHOATE CRIMESThe spectrum of criminal conduct ranges from solicitation through the actual commission of the offense The spectrum might beviewed as: SolicitationConspiracyAttemptSubstantive CrimeSOLICITATIONCONSPIRACYD hires A to kill P andATTEMPTSUBSTANTIVE CRIMEintends for A to do it.A intends to agree, and Aintends to actually kill P.A buys gun and goes to P'sA actually kills P.D says to A "I want to hireoffice with intent to kill P.A reponds "I will do ityou to killA. SOLICITATIONA person is guilty of solicitation to commit a crime if with the purpose of promoting or facilitating its commission hecommands, encourages or requests another person to engage in specific conduct which would constitute such crime or anattempt to commit such crime or which would establish his complicity in its commission or attempted commissionACTUS REUSShort Rule: The act element required is D commands, encourages, or requests another person to engage in specific conductMPC 5.02(1)]. An uncommunicated solicitation is itself a solicitation [MPC5.02(2)].Solicitation occurs at the very outset of a criminal venture and consist of requesting seriously another person to commit anoffense; however, soliciting another to commit an offense does not constitute an attempt.Offense of solicitation is complete as soon as the solicitor asks, entices, or encourages another to commit the targetoffense.It is not necessary that the person or persons solicited or advised agree to or act upon the solicitation or advise.15 CRIMINAL LAW OUTLINEMENS REAShort Rule: D must have the purpose (conscious object] of promoting or facilitating to another the commission to commit anycrime [MPC5.02(1)]Specific intentACCOMPLICE LIABILITYShort Rule 1: A person cannot be guilty of solicitation if liability is inconsistent with the purpose of the provision establishinghis incapacity [MPC 5.04(2)].Short Rule 2: A person is not an accomplice in a solicitation committed by another person if he is the victim of the solicitationor his conduct is inevitably incident to the commission of the solicitation [MPC 5.04(2)]MERGINGShort Rule: Solicitation is graded the same as the target offense [MPC 5.05Offense of solicitation mergers into the crime solicited if the latter offense is committed or attempted by solicitated party.E.g., If A solicits B to murder C, and B refuses, A is guilty of the solicitation; if B agrees and kills or attempts to murder C, Ais guilty of murder or attempted murder, respectively, under complicity principles, rather than of the offense ofsolicitation. If B agrees, but is arrested before the attempt, A and B may be prosecuted for conspiracy to commit murder.A's solicitation would merge into the conspiracy.DEFENSESInsufficient evidenceShort Rule: P must prove every element of the offense beyond a reasonable doubt, unless D is innocent [MPC 1.12(1)].A negative defense; D asserts by silence or testimony that he did not commit solicitation, or that the P cannot prove that hecommitted the solicitation.Not enough evidence to prove beyond a reasonable doubt that D attempted to commit a crime.E.g., physical evidence, witness testimony, confessions, circumstantial evidence.P has the burden of proof beyond a reasonable doubt to prove every element of attempt.WithdrawalShort Rule: Withdrawal is a complete defense to solicitation if D voluntary and completely renounces his criminal purpose[MPC 5.01(4)].MPC permits withdrawal from attempt as an affirmative defense; only if:Full and voluntary (i.e., cannot be because crime became more difficult or there was increased risk of getting caught);Complete abandonment under circumstances manifesting a complete renunciation (i.e., not just postponing to a moreopportune time).BURDEN OF PROOFP has burden of proving beyond a reasonable doubt that D purposely promoted and facilitated the commission of a crime,by commanding, encouraging, or requesting another person to engage in specific conduct which would constitute suchcrime.Defense has burden proving by preponderance of the evidence any affirmative defenses the defense raises.SENTENCINGPenalty for solicitation varies depending upon the illegal activity upon which the solicitation is based (i.e., soliciting one stealcandy from a store will obviously have a lesser punishment than soliciting one to murder someone).Sentences run concurrently.B. CONSPIRACYA person is guilty of conspiracy with another person or persons to commit a crime if with the purpose of promoting orfacilitating its commission (a) he agrees with such other person or persons that they or one or more of them will engage inconduct which constitutes such crime or an attempt or solicitation to commit such crime; or, (b) agrees to aid such otherperson or persons in the planning or commission of such crime or of an attempt or solicitation to commit such crime.ACTUS REUSShort Rule: The act must be an overt act in pursuance of conspiracy, proven to be done by him or by his co-conspirators [MPC5.03(5)].16 CRIMINAL LAW OUTLINEWhen the person solicited agrees to participate in a concerted action with the person soliciting to commit a crime, then aconspiracy is formed.When an overt act is committed by any of the persons involved, the crime of conspiracy is complete. An overt act isenough, no matter how preliminary or preparatory in nature, as long as it is a manifestation that the agreement is beingcarried out.Conspiracy is continuing until the crime or crimes intended are committed or the agreement made is abandoned by the Dand his co-conspirators [MPC 5.02(7)(a)].Abandonment is presumed if neither D non his co-conspirators do any overt act in pursuance of the conspiracy and ifthe conspiracy is terminated as to him only if and when he tells his co-conspirators of his abandonment or he informsthe law enforcement 5.02(7)(b)(c)].MENS REAShort Rule: D must have the purpose (conscious object] of promoting or facilitating the prohibited result or conductKnowledge is not enough [MPC 5.03Specific intentBecause knowledge is not required, it is arguable that such purpose may be proved even if D did not know of the existenceof a circumstance.Corrupt motive doctrine states that beyond the usual mens rea requirements, parties to an alleged conspiracy are notguilty unless they had a corrupt or wrongful motive for their planned actions. MPC rejects the corrupt motive doctrine.ACTUAL CAUSATIONShort Rule: It is enough that the objective of the agreement is criminal conduct [MPC 5.03].IMPORTANT NOTESMultiple crime conspiracyShort Rule: An agreement to commit multiple crimes constitutes only one conspiracy [MPC5.03(3)]MPC take unilateral approachShort Rule: A single person can be guilty of conspiracy (e.g., if other person is feigning[faking or not serious], undercover cop, not capable of agreeing, protected class) [MPC 5.03].Different under common law where conspiracy requires two people.Wharton Rule prohibits the prosecution of two persons for conspiracy to commit a particular offense when the offense inquestion can only be committed by at least two persons. MPC rejects the Wharton Rule.ACCOMPLICE LIABILITYShort Rule 1: A person cannot be guilty of conspiracy if liability is inconsistent with the purpose of the provision establishinghis incapacity [MPC5.04(2)].Short Rule 2: A person is not an accomplice in a conspiracy committed by another person if he is the victim of the conspiracyor his conduct is inevitably incident to the commission of the conspiracy [MPC 5.04(2)].MERGINGShort Rule: Conspiracy is graded the same as the target offense [MPC 5.05].MPC mergers conspiracy with the target offense; can charge both but cannot convict of both unless here is a separateconviction for the crime [MPC 1.07(1)(b)].DEFENSESInsufficient evidenceShort Rule: P must prove every element of the offense beyond a reasonable doubt, unless D is innocent (MPC 1.12(1)]A negative defense; D asserts by silence or testimony that he did not commit conspiracy, or that the P cannot prove that hecommitted the conspiracy.Not enough evidence to prove beyond a reasonable doubt that D attempted to commit a crime.E.g., physical evidence, witness testimony, confessions, circumstantial evidence.P has the burden of proof beyond a reasonable doubt to prove every element of attempt.WithdrawalShort Rule: Withdrawal is a complete defense to conspiracy if D voluntary and completely renounces his criminal purpose[MPC5.01(4)]Withdrawal is a (affirmative) defense and a complete defense only if:Full and voluntary (i.e., cannot be because crime became more difficult or there was increased risk of getting caught);17 CRIMINAL LAW OUTLINEComplete abandonment under circumstances manifesting a complete renunciation (i.e., not just postponing to a moreopportune time).SENTENCINGPenalty for conspiracy varies depending upon the illegal activity upon which the conspiracy is based (i.e., an agreement tosteal candy from a store will obviously have a lesser punishment than an agreement to murder someone).Sentences run concurrently.c. ATTEMPTA person is guilty of an attempt to commit a crime if, acting with the kind of culpability otherwise required for commission ofthe crime, he (a) purposely engages in conduct that would constitute the crime if the attendant circumstances were as hebelieves them to be; (b) when causing a particular result is an element of the crime, does or omits to do anything with thepurpose of causing or with the belief that it will cause such result without further conduct on his part; or (c) purposely doesor omits to do anything which, under the circumstances as he believes them to be, is an act or omission constituting asubstantial step in a course of conduct planned to culminate in his commission of the crime.ACTUS REUSShort Rule: The act must have been a substantial step towards completing the crime. Conduct is not a substantial step unlessit strongly corroborates D's criminal purpose [MPC5.01(2)].Broadens scope of attempt liability; looks to what D has done and not what is still to be done.The following if found to be strongly corroborative, will not negate the substantial step, as a matter of law:Lying in wait, searching for or following victim;Enticing or seeking to entice victim;Reconnoitering place;Unlawful entry;Possession of material specifically designed;Soliciting innocent agent to engage in conduct constituting element of crime.E.g., D has intent to kill A and knows A is at his office. D purposely got a gun and purposely went to A's office. Is going tothe office with a gun strongly corroborative of the criminal purpose?MENS REAShort Rule 1: D must have the conscious objective to engage in or cause the offense or believe that result will occur [MPC5.01(1)(a)(b)].Specific intentComplete attempt for conduct crimes [5.01(1)(a)]:Purposely engage in conduct that would constitute the entire offense, if facts are as D believes them to be (i.e., purpose).Complete attempt for result crimes [5.01(1)(b)]:Purposely or with belief that conduct will cause the result that would constitute a substantive offense (i.e., purpose orbelief about bringing about the result).Short Rule 2: If it is an incomplete attempt, D must purposely do an act constituting a substantial step toward the crime [MPC5.01(1)(c)]Incomplete attempt for conduct and result crimes [5.01(1)(c) & 5.01(2)]:Purposely engage in a substantial step (i.e., whatever is required for attendant circumstances of the target offense, that iswhat D's mental state must be).ACCOMPLICE LIABILITYShort Rule: A person may be convicted of a criminal attempt, although a crime never happened nor attempted if the purposeofhis conduct is to aid another in the crime and such assistance would have made her an accomplice [MPC 5.01(3)].MERGINGShort Rule: Attempt is graded the same as the target offense [MPC 5.05]MPC mergers criminal attempt with the target offense, if it is successfully completed; can charge both but cannot convictboth.E.g., D hires A to kill P (solicitation), and A agrees (conspiracy). A goes to P's office and shoots into the office, thinkingPwas there, but he was not (attempted murder). The solicitation and conspiracy merge with A's attempted murder; D andA are both charged with attempted murder (can charge conspiracy to commit attempted murder and attempted murderbut can only be convicted of one).18 CRIMINAL LAW OUTLINEE.g., D hires A to kill P (solicitation), and A agrees (conspiracy). A goes to P's office and kills P (completed crime ofmurder). The solicitation and conspiracy merge with A's murder; D and A are both charged with murder (can chargeconspiracy to commit murder and murder but can only be convicted of one).DEFENSESShort Rule: D must prove by a preponderance of the evidence any affirmative defenses he raises. P may disprove D'saffirmative defense, if in P's interest or contention [MPC1.12(4)(a)]Insufficient EvidenceShort Rule: P must prove every element of the offense beyond a reasonable doubt, unless D is innocent [MPC 1.12(1)]A negative defense; D asserts by silence or testimony that he did not attempt to commit a crime, or that the P cannot provethat he committed the attempt.Not enough evidence to prove beyond a reasonable doubt that D attempted to commit a crime.E.g., physical evidence, witness testimony, confessions, circumstantial evidence.P has the burden of proof beyond a reasonable doubt to prove every element of attempt.Pure legal ImpossibilityShort Rule: Legal impossibility arises when D mistakenly thought he was committing a crime, but D's act did not violate lawMPC 5.01]D can't make something a crime by thinking it's a crime, if it's not actually illegal (i.e., D's goal or conduct is not against thelaw even if D thinks that it is).Legal impossibility is a (affirmative) defense and a complete defense only when there is no crime to commit, but even if Dbelieves he is committing a crime.E.g., D files April 16 thinking that they are due on April 15 (but they are really do on April 16, so D was not actually late),because he purposely wants to file late to protest. No crime can be committed despite D's belief that it is a crime.Factual ImpossibilityShort Rule: Factual impossibility exists when D intends to commit a crime but fails because circumstances make it impossiblefor D to commit the crime [MPC5.01(1)(a)].NOT a defense under the MPC.E.g., D puts hand inside someone's pocket attempting to take whatever is in there, but nothing is in pocket to take andgoods are not stolen. Impossible for D to have completed the theft; however, if D believed there was something inpocket to take then D would be guilty of attempted theft.E.g., D points gun at A and pulls trigger, but the gun was unloaded Impossible for D to have completed murder of A;however, if D believed gun was loaded then D would be guilty of attempted murder.WithdrawalShort Rule: Withdrawal is a complete defense to attempt if D voluntary and completely renounces his criminal purpose [MPC5.01(4)].Withdrawal is a (affirmative) defense and a complete defense only if:Full and voluntary (i.e., cannot be because crime became more difficult or there was increased risk of getting caught);E.g., D on roof about to rob a bank and hears sirens coming; sirens were not coming for them. D leaves because hethinks siren are coming for them. This is not a full and voluntary withdrawalComplete abandonment under circumstances manifesting a complete renunciation (i.e., not just postponing to a moreopportune time).BURDEN OF PROOFP has burden of proving beyond a reasonable doubt that D purposely engaged in conduct that would constitute a crime,did anything with purpose of causing or with belief that it will cause such result without further conduct on his part, ortook a substantial step in the course of planning.Defense has burden proving by preponderance of the evidence any affirmative defenses the defense raises.SENTENCINGAttempted crimes are generally half the sentence that would have been given if the crime was completed.Sentences run concurrently.19 CRIMINAL LAW OUTLINEVI. LIMITS ON THE CRIMINAL LAWFourth Amendment: Prohibits unreasonable searches and seizures and sets out requirements for search warrants based onprobable cause.Evidence obtained by the police in violation of this amendment may be excluded at D's criminal trial.Fifth Amendment: Sets out rules for indictment by grand jury and eminent domain, protects the right to due process, and prohibitsself-incrimination and double jeopardy.Sixth Amendment: Protects the right to a fair and speedy public trial by jury, including the rights to be notified of the accusations,to confront the accuser, to obtain witnesses and to retain counsel.Seventh Amendment: Provides for the right to trial by jury in certain civil cases, according to common law.Eight Amendment: Prohibits excessive fines and excessive bail, as well as cruel and unusual punishment.Restricts legislative action in two ways:It imposes limitations on what legislators may define as criminal; and,It prohibits punishment that is barbarous in its infliction or grossly disproportional to the offense committedNinth Amendment: Protects rights not enumerated in the Constitution.Tenth Amendment: Reinforces the principle of federalism by stating that the federal government possesses only those powersdelegated to it by the states or the people through the ConstitutionFourteenth Amendment: Due Process Clause and Equal Protection Clause.Due Process Clause guarantees procedural fairness to criminal defendants, but also to respect substantive principles ofjustice.Acts as a safeguard from arbitrary denial of life, liberty, or property by the government outside the sanction of law; dealswith the administration of justice.Separation of Powers: Judges are reluctant to intrude on the lawmaking domain of the legislature because members of thelegislative branch of government are elected, whereas federal judges are appointed and hold office for life. Although judges inmany states are elected, legislators are viewed as more immediately subject to the will of the public. Courts presume thatconstitutionality of criminal statutes, i.e., the party attacking a statute must demonstrate its constitutional invalidity.Federalism: State governments have primary authority for defining and enforcing the criminal laws of their respective jurisdictions.The Constitution does not give the federal government the right to compel statutory uniformity among the states. Legislativediversity is welcomes in our federal system. State legislatures are apt to generate criminal codes that differ from each other in keyrespects.Protecting Individual Rights: Bills of Rights and Fourteenth Amendment guarantees the fundamental rights of individuals will notbe trampled upon by the majority. A court that defers to legislative judgement out of respect for the doctrine of separation ofpowers and federalism may be guilty of abdicating its institutional duty to enforce constitutional edicts. Judges concerned aboutpotential governmental overreaching are apt to de-emphasize the doctrines of separation of powers and federalism. Judgesconcerned about the vitality of the latter principles are likely to de-emphasize the principle that the judiciary should serve as awatchdog against governmental overreach.VII. THEORIES OF PUNISHMENTRETRIBUTIONGoal is to rebalance any unjust advantage gained by ensuring the offender also suffers a loss (i.e., eye for an eye).Proportionality is the backbone of this theoryRetribution is a backward-looking theory of punishment-looking at the past to determine what to do in the present.E.g., pay back a debt, apologize to the elderly, spend time in jail.Capital punishment is under this theory of punishment.20 CRIMINAL LAW OUTLINEINCAPACITATIONSeparates the offender from the community; thus, removing the offender's ability to commit the offense againExtremely costly for societyDETERRENCEGoal is to prevent those who may be contemplating an offense they have not committed from actually committing it.Should be delivered with swiftness, certainty, and severity or it won't work.Two types of deterrence: specific and general deterrence.Specific deterrence punishes an offender to dissuade that offender from committing crimes in the future.General deterrence uses the person sentenced for a crime as an example to induce the public to refrain from criminalconductEXAM TIP: If it is a crime of passion / crime under the influence, then deterrence likely isn't the correct punishment becausethe individual couldn't rationally weigh any punishment that may come later because they aren't thinking clearly.REHABILITATIONCalls for changing the individual lawbreakers through correctional interventions, such as drug treatment programs.Different from deterrence because the goal is to change the offender's mindset.VIII. PROPORTIONALITY AND SENTENCINGThe punishment should fit the crime.Balance test: [Intensity of crime; duration of crime; nature of crime] vs. [harshness of penalty; what are the sentences forsimilar crimes; criminal backgroundPEOPLE V. DUThe court considers the following objectives when imposing a sentence (1) protect society; (2) punish wrongdoing; (3) rehabilitate;(4) deter; (5) protect victims / future victims; (6) restitution; and (7) seek uniformity [People V. Du].Example: The court considers the following objectives when imposing a sentence: (1) protect society; (2) punish wrongdoing;(3) rehabilitate; (4) deter; (5) protect victims / future victims; (6) restitution; and (7) seek uniformity [People V. Du]. Here, ajury convicted Jones of voluntary manslaughter after she shot and killed the victim in his own apartment. Jones is a ten-yearpolice veteran, never shot her weapon in the line of duty and received several commendations In addition, Jones has no priorrecord. It is clear she poses no threat to society. This appears to be an unusual case given Jones believed she was in her ownhome, that an intruder was approaching her, and that out of self-defense fired a single shot. A lengthy prison sentence will donothing to rehabilitate or deter for killing another when one acts under threat and duress. However, the court must weigh theaggravating factor such that she used deadly force. More so, restitution must be given for taking an innocent life. Thus, thecourt would impose a sentence of two years' prison plus five years parole.IX. LEGALITY AND STATUTORY INTERPRETATIONA person may not be punished unless her conduct was defined as criminal before she acted.Prohibits retroactive application of criminal law.Ex Post Facto Doctrine in constitutionA person's conduct cannot be punished unless her conduct was defined as criminal before she acted.Designed to serve fundamental justice by preventing the arbitrary and vindictive use of the laws.If this was allowed, government could use criminal law to punish political rivals.Enhances individual autonomy by maximizing the opportunity of individuals to pursue their own ends by negating the riskthat one's lawful conduct will be punished retroactively.Fair notice grounds.Fair notice that specific conduct constitutes an offenseSufficient warning that men may conduct themselves so as to avoid that which is forbidden.Legislative enactments give fair warning of their effect and permits individuals to rely on their meaning until explicitlychanged.A person cannot be deterred from committing what is subsequently determined to be socially unacceptable act unlessshe has notice at the time of her conduct of the line separating proper from improper behavior.Fifth amendment and fourteenth amendment in the due process clause.Judicial interpretation of ambiguous statutes should be biased in favor of the accused (lenity doctrine).Criminal statutes should be understandable to ordinary, law-abiding persons.21 CRIMINAL LAW OUTLINECriminal statutes should be crafted so as not to delegate basic policy matters to policemen, judges, and juries forresolution on an ad hoc and subjective basis.Vague statutes are unacceptable because they deny a law-abiding person fair notice and authorize and encouragearbitrary and discriminatory enforcementMPC does not recognize the lenity principle, rather it requires that criminal statutes be construed according to their fairimport and that ambiguities be resolved in a manner that furthers the general purpose of the MPC and the specialpurpose of that particular provision involvedX. BURDENS OF PROOFBURDEN OF PRODUCTION (MPC)P has burden of production regarding each elements of an offense.Dhas burden of production in regard to affirmative defenses.MPC does not specify the strength of the evidence required to satisfy D's burden of production regarding affirmativedefenses, rather leaves the matter to the courts.Pis not required to disprove an affirmative defense unless there is evidence supporting such defense.Trial judge decides whether the parties have met their respective burdens of production.BURDEN OF PERSUASIONP has the burden of persuasion regarding each elements of an offense beyond a reasonable doubt.Includes conduct that negatives an excuse or justification.MPC allocates to P the duty to disprove defenses, assuming D has satisfied her burden of production; however, this doesnot apply to defenses that the MPC expressly requires D to prove by a preponderance of the evidence.Generally, D has the burden of persuasion regarding affirmative defenses by the preponderance of the evidence.XI. DEFENSESMISTAKE OF FACTShort Rule: A mistake of fact is a defense if it negates the mental state required to establish any element of the offense [MPC2.04(1)]Short Rule: If an offense is silent regarding an applicable mental state, MPC provides that each material element is established if Dacted purposely, knowingly, or recklessly [MPC 2.02(3)(4)]It is irrelevant whether the offense would be identified as general-intent or specific-intent.Either D had the culpable state of mind required in the definition of the offense or he did not.I.e., D could be convicted of rape if they purposely, knowingly, or recklessly compelled the victim to have sexual intercourseby force, but they would not be guilty of rape if they negligently compelled her.E.g., D realized that X's statement to them about his wife's kinkiness might be false, and yet they consciously disregardedasubstantial and unjustifiable risk that V was not consenting, then a jury could conclude that they recklessly compelled V,and their mistaken belief that she consented would be no defense. In contrast, if a jury believed that Ds were so cluelessthat they genuinely were unaware of the possibility that her resistance was real, then Ds would not be guilty of rape. Thisis so, because Ds negligently compelled V by force, whereas the offense requires proof of recklessness or more culpablestate of mind.A general exception to the rule under MPC is that the defense of mistake of fact is not available if D would be guilty ofanother offense, had the circumstances been as he supposed. MPC only permits punishment at the level of the lesseroffense.E.g., Furnishing heroin to an adult is a misdemeanor and furnishing heroin to a minor is a felony. D reasonably believedthat the person to whom he sold heroin was an adult, but in fact he was a minor. Under MPC mistake of fact provision, Dwould be punished at the misdemeanor level.MISTAKE OF LAWShort Rule: Unless the definition of a crime so provides, neither knowledge nor recklessness or negligence as to whether conductconstitutes a crime or as to the existence, meaning or application of the law determining the elements of an offense is an elementof such offense [MPC 2.02(9)]Short Rule [Reasonable Reliance]: D's belief that her conduct is lawful constitutes a defense if: (1) he relies on an official, buterroneous, statement of law; (2) the statement of law is found in a statute, judicial decision, administrative order or grant of22 CRIMINAL LAW OUTLINEpermission, or an official interpretation by a public official or body responsible for the interpretation, administration orenforcement of the law; and (3) the reliance is otherwise reasonable [MPC 2.04(3)(b)]D is excused in these circumstances because she has acted in law-abiding fashion.Only under limited circumstances is the mistake of law defense recognized under the MPC.Short Rule [Fair Notice]: D is not guilty of an offense if she does not believe that her conduct is illegal, and the statute defining theoffense: (1) is not known to her; and (2) was not published or otherwise reasonably made available to her before she violated thelaw [MPC 2.04(3)(a)]Short Rule [Ignorance or Mistake that Negates Mens Rea]: Mistake of law is a defense if it negates a material element of theoffense [MPC 2.02(9)]JUSTIFICATIONS AND EXCUSESShort Rule: Justified conduct is conduct that under ordinary circumstances is criminal, but which under the special circumstancesencompassed by the justification defense is not wrongful and is even, perhaps, affirmatively desirableJustification defenses go to the propriety of D's act.Triggering conditions permit a necessary and proportional response; to be justified, conduct must satisfy two requirements:It must be necessary to protect or further the interest at stakeIt must cause only a harm that is proportional or reasonable in relation to the harm threatened or the interest to befurtheredE.g., D intentionally kills V. At trial, D claims that he killed V because he believed V was about to kill her. In fact, V was notabout to kill D.Traditional justification defense (here, self-defense) and a mistake of fact claim (D's erroneous belief that V posed animminent unlawful deadly threat).Two questions arise when D asserts a justification defense, and yet also claims a mistake of fact: (1) Is D entitled to beacquitted if she was mistaken regarding the facts that would justify her conduct? (2) If she is entitled to be acquitted,should the law describe her conduct as justified or excused?The law is clear-D is entitled to be acquitted on the basis of self-defense if his mistake of fact regarding the threat wasreasonable. However, he will be convicted of some form of criminal homicide if his mistake was unreasonable.Short Rule: An excuse defense is in the nature of a claim that although D has harmed society, D should not be blamed or punishedfor causing the harm.Excuse defenses relate to the blameworthiness of D.SELF-DEFENSEOverview Rule 1: If D did not start the unlawful conflict, he may use deadly force against the other is he believes that such force isimmediately necessary on the present occasion to combat an unlawful deadly assault by the other, assuming one of the followingcircumstances exists: (1) D has retreated, and the other continues to pursue him; (2) D knows of no safe place to retreat; or (3)even if D could have retreated, if D is in his own home or place of work, and the other is not in his place of work [MPC .04(2)]Overview Rule 2: If D did start the unlawful conflict but did so without the purpose of provoking a deadly conflict, D may usedeadly force in all of the circumstances noted in Overview Rule 1 3.04(2)]E.g., D lightly struck V, but V escalated matters by menacing D with a knife.Overview Rule 3: D may not kill V in self-defense if he started the conflict with the intent to cause death or bodily harm, unless hewithdraws from the conflict. If he does so, D's privilege to kill is restored [MPC 3.04(2)].Short Rule: D is justified in using force upon another person if he believes that such force is immediately necessary to protecthimself against the exercise of unlawful force by the other [MPC 3.04(1)]. D's belief need not be reasonable [MPC 3.04(2)]Immediately necessary component is whether the innocent person's need to use defensive force exists immediately, nothow soon the aggressor's force will be used (like under common law).E.g., V, an abusive husband, tells D, his wife, while they are in the kitchen, that he is going to the bedroom to get a gun andkill her. In response, D picks up a kitchen knife and, when V turns his back on her to go to the bedroom to obtain a gun, shestabs him to death. Under MPC, D's self-defensive act of stabbing V in the back would be justifiable, if she believed that shecould not afford to wait until V returned with the weapon.Short Rule [Permissible Deadly Force]: Deadly force is justifiable if D believes that such force is immediately necessary to protecthimself on the present occasion against: (1) death; (2) serious bodily injury; (3) forcible rape; or (4) kidnapping [MPC 3.04(2)(b)]MPC 3.04(2) expressly provides that the act of purposely firing a gun in the direction of a person or at a vehicle that Dbelieves is occupied constitutes deadly force.Short Rule 1 [Impermissible Deadly Force-Aggressors]: Deadly force is prohibited if D, with the purpose of causing death orserious bodily injury, provoked the use of force against himself in the same encounter [MPC 3.04(2)(b)(i)]. However, if D unlawfullystarts a nonlethal conflict, he does not lose his privileged of self-defense if the other escalates it into a lethal assault (MPC23 CRIMINAL LAW OUTLINE3.04(2)(b)(i)]. D only loses his privilege to use deadly force in self-defense if he is the aggressor in the same encounter MPC3.04(2)(b)(i)]Moreover, if D unlawfully commences a deadly assault upon V, he may regain the right of self-defense in he breaks off thestruggle and V continues to threaten him. In this situation, V's threat is viewed as a distinct engagement.Short Rule 2 [Impermissible Deadly force-Retreat]: D may not use deadly force against an aggressor if he knows that he canavoid the necessity of using such force with complete safety by retreating MPC 3.04(2)(b)(ii)]. Retreat is not necessary if D wouldhave to retreat from his home, or even from his place of work 3.04(2)(b)(ii)]Although retreat from D's home or workplace is required if (1) D was the initial aggressor and wishes to regain his right ofself-protection; or (2) even if D was not the aggressor, if he is attacked by a co-worker in their place of work. Yet, D is notrequired to retreat if he is a non-aggressor in his home, even if the assailant is a co-dweller [MPC 3.04(2)(b)].Short Rule [Self-Defense and Mistake of Fact]: D is justified in using deadly force if, at the time of the homicide, he genuinely andreasonably believed that she was in imminent danger of death or serious bodily injury, and deadly force was necessary to repel thethreat, although it turned out later that these appearances were false [MPC 2.04(1)(a)]An imperfect defense that requires a two step-process to recognize.First, each justification defense dealing with the use of defensive force is defined solely in terms of D's subjective belief inthe necessity of use the force, or in terms of his subjective belief regarding other circumstances that are material to theparticular justification claim.However, this is subject to MPC 3.09(2), which provides that when D is reckless or negligent in regard to the facts relatingto the justifiability of his conduct, the justification defense is unavailable to him in a prosecution for an offense for whichrecklessness or negligence suffices to establish culpability.E.g., D purposely kills V because he unreasonably (let's assume negligently) believes V is about to kill him, the defenseof self-protection is available to D if he is charge with purposely, knowingly, or recklessly killing V, but the defense isunavailable to him if he is prosecuted for negligent homicidePolicy argument in favor of this defense: Criminal law does not demand ideal behavior from people. The law can only fairlyexpect of a person is that he makes a conscientious effort to determine the true state of affairs before acting. If he does this,his conduct is justifiable, although the result of his conduct may be tragic. Further, there is no inherent anomaly inrecognizing incompatible justifications. The point here is not that the law should permit a justification defense to mistake offact, but rather that it is not irrational to do so. Lastly, it is plausible to argue that a person's natural right to defend hisautonomy should apply in a situation in which her life reasonably appears to be in imminent jeopardy, even if later eventsdemonstrate that such appearances were false.Policy argument against this defense: A person is justified in acting on the basis of reasonable, albeit inaccurate,appearances, confuses the difference between justifications and excuses. A reasonable but mistaken D is morally blamelessand, therefore, should be excused; but it is wrong to suggest that the act of killing an innocent person is ever justifiable.DEFENSE OF OTHERSShort Rule: D is justified in using force upon another in order to protect a third party if three conditions are met: (1) D uses nomore force to protect the third party than D would be entitled to use in self-protection, based on the circumstances as D believesthem to be; (2) under the circumstances as D believes them to be the third part would be justified in using such force in self-defense; and (3) D believes that intervention is necessary for the third party's protection [MPC3.05(1)]DEFENSE OF PROPERTY AND HABITATIONShort Rule [Force to Protect Property]: D may use nondeadly force upon another person to prevent or terminate an entry or othertrespass upon land, or to prevent the carrying away of personal property, if he believes that three conditions exist: (1) the otherperson's interference with the property is unlawful: (2) the intrusion affects property in D's possession, or in the possession ofsomeone else for whom he acts; and (3) nondeadly force is immediately necessary [MPC 3.06(1)(a)].Short Rule [Force to Recapture Property]: D may use nondeadly force to re-enter land or to recapture personal property if (1) hebelieves that he or the person for whom he is acting was unlawfully dispossessed of the property; and either (2a) the force is usedimmediately after dispossession or (2b) even if it not immediate, D believes that the other person has no claim of right topossession of the property [MPC 3.06(1)(b)].However, in the 2b situation, re-entry of land is not permitted unless D also believes that it would constitute an exceptionalhardship to delay re-entry until he can obtain a court order.Short Rule 1 [Use of Deadly Force]: D may use deadly force upon an intruder if D believes that (1) the intruder is seeking todispossess him of the dwelling; (2) the intruder has no claim of right to possession of the dwelling; and (3) such force isimmediately necessary to prevent dispossession MPC3.06(3)(d)(i)].D must believe two things: the intruder's purpose for entry is to dispossess from of the dwelling and the intruder is actingwithout a claim of right.24 CRIMINAL LAW OUTLINEUse of deadly force is not predicted on D's personal safety or privacy, but rather on D's right to avoid eviction fromthedwelling.NECESSITY (CHOICE OF EVILS)Short Rule: D's conduct is justifiable if (1) he believes that his conduct is necessary to avoid harm to himself or another; (2) theharm to be avoided by his conduct is greater than that sought to be avoided by the law prohibiting his conduct; and (3) nolegislative intent to exclude the conduct in such circumstances plainly exist [MPC3.02(1)].D does not automatically lose the defense because he was at fault in creating the situation.MPC provides that the defense is only unavailable if D is prosecuted for a crime of recklessness or negligence and heacted recklessly or negligently in bringing about the emergency or in evaluating the necessity of his conduct.Determination of what constitutes a lesser harm is not left to the judge or jury at trial, not to D's evaluation.All forms of necessity qualify-it is not limited to emergencies created by natural forces, is not limited to physical harm, andmay be employed in homicide prosecutions.DURESSShort Rule 1: Duress is an affirmative defense to unlawful conduct by D if: (1) D was compelled to commit the offense by the use,or threatened use, of unlawful force by the coercer upon him or another person; and (2) a person of reasonable firmness in hissituation would have been unable to resist the coercion [MPC 2.09(1)].Short Rule 2: Defense is unavailable if D recklessly placed himself in a situation in which it was probable that he would be subjectto coercion. If he negligently placed himself in such a situation, the defense is available to him for all offenses except those forwhich negligent suffices to establish culpability [MPC 2.09(2)].INTOXICATION (SEE MPC)INSANITY (SEE MPC)DIMINISHED CAPACITY (SEE DEFENSE UNDER HOMICIDE FOR EMED)XII. ELEMENTS OF A CRIMEShort Rule: A person is not guilty of an offense unless his conduct, which must include a voluntary act, and which must beaccompanied by a culpable state of mind, is the actual and proximate cause of the social harm, as proscribed by the offenseExample: D was epileptic who killed four children when the car he was driving went out of control during a seizure. P alleged that Dknew that he was highly susceptible to seizures and failed to take proper precautions As a result, D was prosecuted for criminalnegligence in the operation of a vehicle, resulting in death.Was such a prosecution appropriate in view of the fact an epileptic seizure is an uncontroversial example of an involuntary act?Depends on time-framing. Constructing a narrow time-frame-specifically the conduct at the instant the car struck the victims-D's conduct did not include a voluntary act. A broader timeframe, would include the voluntary acts of entering the car, turning theignition key, and driving.ACTUS REUSShort Rule: No person may be convicted of a crime in the absence of conduct that includes a voluntary act or omission to performan act of which he is physically capable The prosecution has the responsibility to persuade the factfinder beyond a reasonabledoubt of the existence of a voluntary actPhysical or external portion of the crime.An essential element of every criminal offense. Voluntariness, and involuntariness, should not be considered an affirmativedefense.Actus Reus of an offense consists of a voluntary act (or, rarely, a failure to act), the cause, and the social harm.E.g., D picks up a knife and stabs A, killing A. D performed a voluntary act (stabbing A) that caused A's death (social harm).Bodily movement, a muscular contraction.E.g., pulling the trigger on a gun, raises his arm, blinking his eyes, turns the ignition key in an automobile, putting one legin front of the other.Attendant circumstances: A fact or condition that must be present when D performs the prohibited conduct or causes theprohibited result.E.g., attendant circumstances for burglary are "dwelling house," "of another," and "at night."25 CRIMINAL LAW OUTLINEMENS REAShort Rule: A person may not be convicted of an offense unless he acted purposely, knowingly, recklessly, or negligently, as the lawmay require, with respect to each material element of the offense.Mental state of D.MPC requires P to prove that D committed the social harm of the offense-each material ingredient of the social harm ofthe offense-with a culpable state of mind."Material element of the offense" includes "elements" relating to the existence of a justification or excuse for D's conduct,i.e., to defense to crimes.CAUSATION (SEE BELOW)XIII. CAUSATIONACTUAL CAUSEShort Rule: To be guilty of an offense, D's conduct must cause the prohibited result Cause is defined as an antecedent but forwhich the result in question would not have occurred MPC 2.03(1)(a)].Two tests: (1) "but for," which is that D's conduct is an actual cause of the victim's death if it is true that but for D's conduct,the death would not have occurred; (2) concurrent causes, which is when two causes happen to bring about the victim'sdeath, and neither would have done so independently, both are treated as actual causes of death.E.g., Acting independently, Dan and Joe shoot Jim. Neither shot by itself would be enough to kill Jim, but the two shotstogether does.In situation where there are two Ds, no need to apply the substantial factor test because each D is a but-for cause of theresult.Independent simultaneous sufficient causes: when two causes combine to bring about the victim's death and each byitself would have done so, both are treated as an actual causeIndependent nonsimultaneous sufficient causes: when one cause would have brought about the victims death in thecourse of time, but another act brings about the death immediately only the latter is treated as the actual cause of death.E.g., Dan inflicts a wound on Jim that eventually will be fatal. The next day, Joe enters Jim's hospital room and shootshim through the head, killing him instantly. Only Joe's act is the actual cause of Jim's death.Can break "but-for" if events are too remote in time and place.PROXIMATE CAUSEShort Rule: MPC treats but-for causation as the exclusive meaning of causation in criminal law. MPC treats matters of proximatecausation as issues relating instead to D's culpability.D is responsible for the foreseeable results of his actions, including results that come from foreseeable intervening causes.O Must be a direct and natural result of D's actions on victim's injury.An intervening superseding cause breaks the chain after the initial action and cuts off liability from the initial unlawful actor.A superseding event is an event that is unforeseeableE.g., A person is in an ambulance and a bridge breaks causing everyone in it to die.Issue spotting on exam it has to be the actions of D that caused the danger that you are not safe from. When analyzingfact situations on exams, if you see a decision and choice made from the victim, then you know your issue in that cause iscausation.E.g., X hit Y with his car. Y got out of the car and went to sidewalk, but then walked back to the car and was hit by z.De minimis causes law will generally not treat a very minor but-for cause of harm legally responsible for the result whenresponsibility can be attached to a far more substantial cause.Unforeseeable = breaks chain = superseding causeForeseeable = does not break chain = not superseding cause.E.g., simple negligence of a third person would potentially be foreseeable whereas gross negligence of the third personwould not.26